LAXMIBAI BABURAO SHINDE AND OTHERSversusISHWARI MAHESH SHINDE AND OTHERS

2026:BHC-AUG:41177
                                                 1                        988-WP-10567-2026.odt




                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD
                                988 WRIT PETITION NO. 10567 OF 2026

                               Laxmibai Baburao Shinde And Others
                                             VERSUS
                                Ishwari Mahesh Shinde And Others
                                                  ...
             Mr.Patil Ujwal Subhash for the Petitioners.
             Adv. V.V. Deshmukh for Respondent Nos.1 and 2.
                                                  …
                                  CORAM          : MANJUSHA DESHPANDE, J.
                                     DATE            : 04.09.2026
             PER COURT :

             1.              The Petitioners are challenging the order passed below

             Exhibit-102, wherein the application filed by the Petitioners that is

             original defendant nos.1 to 4 for setting aside the ‘No Cross’ order dated

             19th January, 2026 at Exhibit-79 that is cross-examination of PW-2 and to

             set aside the ‘Evidence Close’ order dated 26 th February, 2026 against

             them on the ground mentioned in the application, has been rejected vide

             order dated 27th July, 2026 by the Civil Judge Senior Division, Omerga.

             2.              Respondent Nos.1 and 2 have filed Special Civil Suit No.5 of

             2016 before the Civil Judge Senior Division, Omerga claiming partition,

             separate possession, perpetual injunction and rendition of accounts in

             respect of several joint family properties. The present Petitioners have

             appeared in the suit and contested the same by filing written statement.

             It is submitted that the plaintiffs filed evidence affidavit below Exhibit-78

             and filed evidence affidavit of PW-2 below Exhibit-79.

             Sunny Thote
                                  2                         988-WP-10567-2026.odt


3.            The learned Advocate for the Petitioners submits that the

defendant nos.1 to 4 have examined PW-1 on 8 th December, 2025.

However, PW-2 could not be examined since the PW-2 was absent. On the

next date, the Advocate for the defendants was absent. On 19 th January,

2026, the Evidence Close pursis is filed by the Advocate for the plaintiffs

and No Cross order came to be filed against the present Petitioners, since

the Advocate for the present Petitioners was not present. Inspite of grant

of adjournment by the Court, the Advocate for the present Petitioners

could not remain present, since he travels from Aurangabad to Omerga

where the suit is presently being filed. It is further submitted that due to

absence of the Advocate for defendant nos.1 to 4 on 26 th February, 2026,

the Trial Court passed an order of closing the evidence of defendant nos.1

to 4. Being aggrieved by both the orders and application for setting aside

‘No Cross’ order passed on Exhibit-79 dated 19 th January, 2026 and

Evidence Close order dated 26th February, 2026, was filed by the present

Petitioners on 27th March, 2026, the present Petitioners have stated that

defendant nos.1 to 4 are the female members and reside at different

places such as Aurangabad, Pune and Gangapur, therefore, due to lack of

coordination, their Advocate could not remain present on the given dates,

and it was not possible to examine PW-2. It is also submitted that

considering the geographical distance between Omerga and Aurangabad,

the Advocate engaged by them was facing difficulties to commute on the

dates assigned by the Court. As a result of which he could not remain
Sunny Thote
                                  3                          988-WP-10567-2026.odt


present on the given dates. It is, therefore, prayed that ‘No Cross’ order as

well as the ‘Evidence Close’ order should be set aside. An order came to

be passed on the said application vide order dated 27 th July, 2026

rejecting the application of the Petitioners with cost of Rs.5,000/- and

suit was kept for evidence of defendant no.5.

4.            The learned Advocate for the Petitioners contends that the

Petitioners undertake to cross-examine the PW-2 on whatever date this

Court would fix and thereafter would not delay the proceedings in this

suit. Considering the reasons stated in the application, he would submit

that the defendants were facing genuine difficulty, therefore, the

defendants as well as their Advocates could not remain present on the

given dates, which is not intentional or deliberate or even a delay tactic

as observed by the Court in the impugned order.

5.            Per-contra, the prayer made by the Petitioners is opposed by

the learned Advocate appearing for the defendants, he would submit that

the Roznama discloses that the Advocate for the defendants as well as

defendants have remained absent consistently during the Court

proceedings. He would point out that even prior thereto an order was

passed by the Court on 3rd September, 2025, setting aside the ‘No Cross’

order, vide order below Exhibit-85 subject to payment of cost of

Rs.1,000/-. Therefore, in view of the aforementioned background, the

application filed by the present Petitioners has been rightly rejected by

the Civil Judge Senior Division, Omerga.
Sunny Thote
                                  4                         988-WP-10567-2026.odt


6.            I have considered the submissions of the respective

Advocates and I have perused the order impugned. Admittedly, even on

the early occasion the present Petitioners have remained absent in the

suit, therefore, ‘No Cross’ order has been passed, which was set aside by

passing an order below Exhibit-85 subject to deposit cost of Rs.1,000/-.

Inspite of that immediately thereafter, they have failed to cross-examine

PW-2. Although, admittedly PW-2 was absent on 8 th December, 2025, but

thereafter the Advocate for the defendants has consistently remained

absent for a long period and only when the order for ‘Evidence Close’ is

passed, the present application has been filed for setting aside both the

orders. However, considering the nature of suit and the rights of the

parties involved, it would not be appropriate to deprive the original

defendants to cross-examination as well as lead evidence in the suit.

Therefore, in my view, it would be appropriate to grant one more

opportunity to the original defendant nos.1 to 4 to participate in this suit

by setting aside the ‘No Cross’ order and ‘Evidence Close’ order, however

it is made clear that no such further applications filed by the defendants

to be entertained by the Court below. It would serve the interest of the

parties by compensating the plaintiffs with the cost of Rs.15,000/-.

7.            In view of the aforementioned observations, the Writ Petition

is allowed. The order passed below Exhibit-102 is quashed and set aside

subject to payment of cost of Rs.15,000/- to be paid to the plaintiff before

the next date. The parties shall remain present before the Trial Court on
Sunny Thote
                                  5                      988-WP-10567-2026.odt


8th September, 2026, with the witness, i.e., PW-2.

8.            The plaintiffs shall remain present with the PW-2, who is

required to be examined on 8th September, 2026.

9.            With the aforementioned directions, the Writ Petition is

disposed off.



                                          [ MANJUSHA DESHPANDE, J. ]




Sunny Thote